224 jDRIEBERG J.—Hoare & Co. v. Rajaratnam.
There is here an express promise to pay on the expiry of two months,and the action has to be brought with. reference to this promise. InPhilips v. Philips,' which was approved in the case of Spencer v. Hem-merde * it was held that “ the legal effect of an acknowledgment of adebt barred by the Statute of Limitations is that of a promise to pay theold debt, and for this purpose the old debt is a consideration in law.In that sense, and for that purpose, the old debt may be said to be revived.It is revived as a consideration for a new promise. But the new promise,and not the old debt, is the measure of the creditor’s right.”
If there is a condition attached to the promise the condition-must befulfilled before the plaintiff can claim the benefit of the promise.
In this case the respondent’s claim that the condition has been fulfilledfor the reason that they brought this action within a year of the expiryof the two months requested in P 1, but can they by now saying thatthey observed the conditions gain the benefit of the promise which theyhad expressly rejected? The case of Buckmaster v. Russell * is a directauthority to the contrary; it was there held that a special promise isone which will not bind unless accepted by the plaintiff to whom it ispreferred, and that where a proposal is rejected it cannot be relied on asan acknqwledgment to bar the statute.
I agree with the order made by my brother Dalton.
Appeal allowed.
1 3 Hare at p. 299.
(1861) 10 C.
2 H. of h.
B. new serie.t 745 and 4 L.
(1922) 2 A.552.
C. 507.